COHEN
v.
COHEN ET AL.
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The Florida Supreme Court affirmed a trial court's dismissal of a second divorce-related suit on res judicata grounds, holding that the appellant failed to bring the complete record from the first suit to the appellate court, making review impossible.
The court affirmed the dismissal because the appellant failed to bring the complete record from the first suit to the appellate court. Where findings of the lower court are based on evidentiary matters or a record not included in the appellate transcript, the appellate court cannot review the lower court's orders.
“It is well settled that where the findings of the lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court.”
Establishes the fundamental procedural requirement that complete records must be brought to the appellate court for meaningful review.
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Join FLexlaw to unlock all legal intelligenceThe appellant obtained a divorce and property settlement in September 1952, represented by counsel, with the settlement embodied in the final decree. …
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MATHEWS, Justice.
In this cause the appellant was granted a divorce and at the same time a property settlement which was fully.set forth in a stipulation embodied in the final decree entered on the 25th day of September, 1952. Appellant was represented by a reputable attorney in that proceeding.
This suit was filed on June 1, 1953, for an accounting and other relief against the former husband, claiming that there was not a full disclosure in the first suit and that the ex-husband perpetrated a fraud upon her. Motion to dismiss was filed on the ground that all matters and things set forth in the second suit are res adjudicata. The same Chancellor who heard the first suit also heard the second suit and granted the motion to dismiss the bill of complaint.
The entire file of the first suit was before the Chancellor at the time of the argument on motion to dismiss the second suit. The order on the motion to dismiss the second suit contained the following:
«* * ^ "phe allegations contained therein are res adjudicata, and have been decided and settled in the previous action, and that all matters and things contained in said bill of complaint have been adjudicated in the prior suit filed by the same plaintiff against the same defendants in Chancery Case No. 148651 in the Circuit Court. * * *”
In this suit the entire record considered by the Chancellor was not brought to this Court on appeal. In other words, the finding of the lower Court was based upon the transcript of record in the first suit and such transcript of record has not been brought before this .Court. It is well settled that where the findings of the lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court. Grantham v. Grantham, 140 Fla. 120, 191 So. 197; Shea v. Carlton, 116 Fla. 507, 156 So. 495.
It is proper that the defense of res adjudicata be raised by motion where the facts supporting such motion appear from the bill of complaint. Keen v. Brown, 46 Fla. 487, 35 So. 401.
The order of the Chancellor dismissing the bill of complaint in this cause is presumed to be correct and no reversible error has been shown.
Affirmed.
ROBERTS, C. J., and TERRELL and SEBRING, JJ., concur.
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Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983)…tate of Donner, 364 So. 2d 757 (Fla. 3d DCA 1978); Chambers v. Chambers, 102 So. 2d 171 (Fla. 1st DCA 1958), unless, which is not the case here, the facts supporting the affirmative defense appear on the face of the counterclaim, see Cohen v. Cohen, 70 So. 2d 362 (Fla.1954); Barrentine v. Vulcan Materials Co., 216 So. 2d 59 (Fla. 1st DCA 1968). She further argues that even if the fact of the earlier dismissal of her Rule 1.540(b) motion had appeared on the face of her counterclaim, that dismissal, since base…
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Althouse v. State Farm Fire & Cas. Co., 183 So. 2d 859 (Fla. 2d DCA 1966)…ied to the appellate Court. This holding was in the following language: “The matters thus referred to by the court as a predicate for its action were not brought before us in this record. In that circumstance, as stated in Cohen v. Cohen, Fla.1954, 70 So. 2d 362, 363, ‘where the findings of the lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court.’ ” It necessarily follows that…
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Tuttle v. Miami Dolphins, Ltd., 551 So. 2d 477 (Fla. 3d DCA 1988)…o. 2d 1243; Strickland v. Jacobs, 235 So. 2d 747 (Fla. 1st DCA 1970), and “[tjhere being no record of what evidence the court considered,” affirm. Mutual Life Insurance Co. v. Okun, 485 So. 2d 897, 899 (Fla. 4th DCA 1986). See [*484] Cohen v. Cohen, 70 So. 2d 362 (Fla.1954); Ben-Hain v. Tacher, 418 So. 2d 1107; Fernandez v. Arocha, 308 So. 2d 45 (Fla. 3d DCA 1975); Broward County Port Authority v. F.M. Rule & Co., 119 So. 2d 82. These principles are usually applied where the evidence presented to the trial…1 / 2
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grantham v. Grantham, 140 Fla. 120 (Fla. 1939)
- Sherod S. Keen v. Brown, 46 Fla. 487 (Fla. 1903)
- Shea v. Kittie L. Carlton, 116 Fla. 507 (Fla. 1934)